‘I am trying to be a reforming AG in a reforming government’

This article first appeared in The Edge Financial Daily, on September 19, 2018.
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The report late morning yesterday by the Free Malaysia Today website that Attorney-General Tommy Thomas had resigned came as a shock to editors of The Edge Financial Daily (TEFD) and Malaysiakini as the country’s top law enforcement officer, just last Thursday, gave a joint interview in conjunction with his first 100 days in office, to be published this week.

Thomas called TEFD shortly after Free Malaysia Today (FMT) published the news to say it is not true. “That’s absolute nonsense. I have not resigned,” the attorney-general (AG) said. FMT subsequently withdrew the story which it had attributed to an unnamed source.

Whether it is a genuine mistake by a misinformed source or anything sinister, no one except FMT and the source will know, but Thomas’s appointment is certainly a surprise and controversial because of his ethnicity and background as a well-known critic of the government, including when Tun Dr Mahathir Mohamad first ruled from 1981 to 2003.

Following are excerpts of the interview, attended by Ho Kay Tat, Tan Choe Choe and S Kanagaraju from TEFD, touching on 1Malaysia Development Bhd (1MDB), lopsided government contracts, legal reforms and decisions to withdraw charges against Pakatan Harapan politicians and supporters:

 

Q: What’s your assessment of your first 100 days?

A: The challenges have been much greater than what I had expected. What I said on the first day remains, that I have three priorities. Firstly, everything to do with 1MDB, which is not just the criminal aspects, but there’s also the civil recovery. Secondly, the lopsided contracts, and thirdly, law reforms. Those have always been my focus, and remain my focus. But it was only when I came into the office and sat down and started doing work, that I realised the awesome responsibilities attached to the office. And I think you will not know it unless you are sitting here. It’s difficult for anyone from the outside — certainly not a private practitioner, as I was. Even somebody from this Attorney-General’s Chambers (AGC) — there are about 1,200 lawyers here — even they won’t understand the amount of responsibilities [of the AG]. So that has surprised me.

 

Q: How about your officers’ competency? There have been some criticisms that there are not enough competent people dealing with the prosecution. Do you find that a problem?

A: I think that’s unfair. We have tremendous specialisation, but of course also lacking in some areas. For example, in things like AMLA (Anti-Money Laundering Act), very critical in the next few years, and Mutual Legal Assistance — again very critical because we’ve got to deal with different countries — we have top-class specialists. For the review of contracts, we also have excellent people as I’m personally dealing with them. In so far as prosecution is concerned, what I would say is never in the history of the [AG’s] Chambers has there been so much demand for prosecution which is because of past misdeeds accumulated over the years, problems that I’ve inherited.

Whether it’s 1MDB or not, there is a long list of cases waiting once the IPs (investigation papers) are delivered to me. Even if you have 1,000 world-class prosecutors, it’s just not enough. That tells you — it’s a commentary on the alleged crimes built up over the years. So, the pressure is awesome. That’s why we’re setting up the 1MDB unit; we’re setting up different units to cope, because we’ve never done this before. If the AGC had done this from 2011 ... if prosecutions had taken place from 2011 or 2012, then it would not have built up.

Just to get it in relative terms, please look at the US. Their DoJ (Department of Justice) is obviously world-class because they have so many talented people — forensic accountants, lawyers ... unmatched resources; look at how special counsel Robert Mueller and his team are doing. It took more than a year before they charged anybody. Then they went very fast; they’ve charged, I think, about 20 people in the last three months and they have got a few convictions. But it took them one year. And I tell you, the 1MDB scandal is much, much more complex than what [US President Donald] Trump has allegedly done. 1MDB is the world’s greatest kleptocracy!

Q: You mentioned there’re criminal as well as asset recovery aspects with regard to 1MDB. Maybe you can share with us the approach that your office is taking concerning these two aspects?

A: On the criminal aspect, we can’t do anything until the IPs come. Just to remind you that in our system [of investigation] — many countries also have it to prevent too much concentration of power — the idea is to distribute power. For checks and balances, there are four or five investigative agencies in Malaysia, such as the police, the MACC (Malaysian Anti-Corruption Commission), Bank Negara Malaysia, Securities Commission Malaysia, [and Royal Malaysian] Customs [Department] which investigate, but they cannot charge. Otherwise, they would be too powerful. The AG’s Chambers prosecutes; we have the sole monopoly on prosecution, and we should not carry out investigations because we’re already so powerful. So can you imagine how much more powerful we will be if we investigate as well. So I’m against those who say the MACC must prosecute. They don’t know how much power that will give to the MACC, if that happens. The existing system is perhaps the least worst.

But the disadvantage of this is if the agencies do not give us the IPs, then the AGC cannot do much. We cannot do anything until the IPs are given to us. So until today, there is not a single 1MDB IP given to us. When it comes to Jho Low (who was charged in absentia for money laundering), the AGC asked the police to share their investigations, and we then charged him. So, on 1MDB, not yet, but hopefully it will happen soon.

 

Q: Do you know how many IPs have been opened as far as 1MDB is concerned?

A: No, I don’t know. And of course you know the MACC’s public position — I think they reiterated that about two weeks ago — is [that the investigation is] 60% [completed]. They’ve been saying that to me from the time I took office. So what they’ve told me is what they’ve told the public: 60% of the first IP on 1MDB is done. And of course, ‘1MDB’ is a shorthand description of a massive fraud done over five to six years across the world, in numerous transactions. You really have to look at it the way the fraudsters had planned it. The fraudsters designed one transaction after another, deal by deal. So there could be a 2011 fraud, a 2012 fraud, a 2013 transaction, a 2014 deal and so on.

Q: Your immediate predecessor Tan Sri Apandi Ali has been accused of conspiring in covering up the 1MDB scandal. Can we expect charges to be brought against him as well?

A: I don’t know anything about that. We have not gone in that direction. What I can tell you is — and all of you know it — there were no prosecutions during his three-year tenure on 1MDB, that’s a fact. You have to ask him why there were no prosecutions, and none during the previous AG’s time too. Because as you know, the origin of 1MDB is the TIA (Terengganu Investment Authority). Anyone living in KL would be aware that there were things horribly wrong. I was aware of things that were questionable in 2009 and 2010 just by mixing with the business community, journalists and politicians. Those in KL with an informed opinion knew something was wrong in 2009 and 2010. So why didn’t my predecessors do anything about it? You have to ask them.

 

Q: Do you have any authority to ask investigators to provide you with updates or to speed up things?

A: Yes, they do provide updates and all that. But that’s of no use; I would rather not be updated. I want the complete IP. It’s better to have the complete package, otherwise you’re reading it twice. If you ask my team to read it when it’s at 60%, they would have to reread it when the 100% comes. So it’s of no help and of no practical assistance, unless they give us the complete package.

Now I must answer the civil part. The civil part is absolutely neglected. Everybody forgets that because the criminal dimension is ‘sexy’ and ‘newsworthy’.

Civil recovery is the one that’s underrated and not understood at all. It is essentially to recover as much of the stolen stuff as possible, and most of them are [found] abroad.

So we start with the US. The DoJ, as you know, has been successful. They began in 2016, with [former US attorney-general] Loretta Lynch’s press conference with the filing of complaints where they have frozen assets — which we say, and the US government does not deny — belong to us in trust. Because taxpayers’ money was used, indeed stolen, to buy these assets. So they are assets that belong in trust to Malaysia, but were held by other people who misused them. So we have to stake a claim. Again, we lost three years of it.

I must remind you that the previous government had distanced itself [from these assets] — its public position was these weren’t Malaysian assets, when actually they are. Until GE14 (the 14th general election), Malaysia’s official position was they were not Malaysia’s assets. Seldom would a beneficiary tell the world “these are not my assets”, and that’s what Malaysia was doing. We only started telling the truth after GE14.

So that’s the US, [and] we have to intervene. We have appointed lawyers and they’re going to intervene in court proceedings because it’s quite technical and related to sovereign immunity and jurisdictional questions. We are receiving advice, and hope to make a decision shortly.

Then in Singapore, it has also started. Again, it’s the same process. We have appointed lawyers and they are appearing in court. We’ve got some low hanging fruits. But where there are opposition and contest, it’ll take five to six months. This first group of defendants did not object at all. They relinquished all claims. They surrendered, so it’s no problem. And Singapore wants the identities of the defendants to be anonymous. One can understand because Singapore wants to encourage more claimants to give up their claims, and in return Singapore would keep their names confidential. That makes sense. We just want the assets.

 

Q: It (the identities of the defendants) will be kept anonymous forever?

A: That I don’t know; it is a matter for Singapore to decide. But for us, we want the monies returned to Kuala Lumpur.

 

Q: Does your office have an indication how much money is involved in Singapore? The US DoJ has mentioned US$4.5 billion in its suit.

A: Singapore has not really mentioned it because they’re not really sure as there are some contests. But what will happen in the next six months or so, we will get court orders, and monies will be returned. And as you know we’ve opened an account, a special segregated new account, controlled by the MoF (ministry of finance). It’s the MoF and the new directors of 1MDB who are controlling it.

 

Q: So it’s an MoF-1MDB recovery account?

A: Yes, [and it’s] specially set up. After the RM19 billion hole in [unpaid] goods and services tax [refunds], there has to be a specially protected, segregated trust account earning interests and controlled by honest signatories.

 

Q: This is for recovered assets from everywhere, and not just Singapore?

A: Yes, it starts with Singapore. And then we’ve got Switzerland, again they’re cooperating with us.

 

Q: The biggest one is in the US?

A: Yes.

 

Q: It will take several years, you think?

A: No, I don’t think so. I think ... well, the US ... well, maybe. It goes asset by asset. They are ‘in rem’ actions.

 

Q: So it’s not a collective action?

A: No. The US claims: Let’s say they have got 10 separate complaints, then it’ll be because these are 10 different assets. So they may have one for the yacht, one for the artwork, one for this land, one for that land and so on. Just like our admiralty claim for the yacht:  it is also ‘in rem’. What ‘in rem’ means is a claim against an identified property, as opposed to an individual, which would be an ‘in personam’ action.

 

Q: Has there been any challenge in the US? Jho Low?

A: Yes, court challenges.

 

Q: To be clear, in Singapore, what exactly are the assets that are involved. Is the jet one of them or not?

A: Most are bank accounts. Cash in bank. But I think there may be one or two properties, apartments.

 

Q: What about the private jet?

A: The private jet, we are in no hurry to receive it. Because as things stand, Singapore has done it skilfully. Singapore has taken steps to ensure that the plane cannot fly off without air traffic control, which they will not give. The plane cannot leave Singapore air space, to the best of my knowledge. But the maintenance of the plane remains Jho Low’s. So from Jho Low’s perspective, he’s got the worst of both worlds. He’s got to maintain the plane, which is parked on the runway, but cannot fly it out. From our perspective, there’s no hurry to get it — it’s safe there — let us sell the yacht, then we can turn our attention to the plane. Unfortunately, the plane doesn’t come within our admiralty jurisdiction, so it’s more complicated. We have to be concerned about giving clean title to a buyer.

 

Q: There has been no complaint about the AG’s office using private lawyers overseas to help in asset recovery. And yet when the AG’s office uses the private lawyers here to help in the case of the yacht, or even brings in Tuan Haji Sulaiman Abdullah and Datuk Seri Gopal Sri Ram, there has been criticism. Would you like to respond to that?

A: First of all, in foreign jurisdictions, we have no choice, absolutely no options. So we have to use local lawyers there, for instance, Swiss lawyers in Switzerland. In so far as Malaysian lawyers, I think what has surprised me is the outcry, as if this was the first time that AGC has used external lawyers.  I asked Chambers to do some research on previous appointments.

In the last 20 years, beginning  with our first dispute with Singapore in the International Court of Justice (ICJ) in the Pulau Batu Puteh dispute — the first one, which was about 20 years ago —  we appointed a large group of foreign lawyers. I can’t understand why we did not appoint Malaysian lawyers.  The foreigners charged large sums of fees, and Malaysia lost anyway.

Domestically, AGC has in the past appointed local lawyers. AGC appointed Datuk KC Vohrah, Tan Sri Cecil Abraham and Datuk Sunil Abraham and their firm, Zul Rafique for many civil matters. In our dispute with Singapore on Temasek: our joint venture in the Singapore land — whether we ought to pay the development fees. That went to arbitration. Again, I don’t see why Malaysian lawyers could not have been used. It was a straightforward case of interpretation of a contract.  Quite straightforward. And I think we had three or four foreign lawyers charging hefty fees.   

 

Q: This was in Singapore?

A: No, in London. A dispute between Malaysia and Singapore heard in London. But it is arbitration and so any lawyer can appear. Malaysian lawyers can appear. It was followed by a trademark registration case at the EU General Court. Again AGC appointed foreign lawyers. There were other disputes of an international nature which were all kept secret, and not made known to the public. Not even the Malaysian legal profession knew about them, but taxpayers were paying for such litigations.

Finally, with the second Pulau Batu Puteh dispute, where Malaysia wanted to revisit the dispute, Prime Minister Tun [Dr] Mahathir [Mohamad] decided to discontinue it. We had four foreign lawyers and two Malaysian lawyers — Datuk Abu Bakar bin Mohamed Sidek from Penang and Datuk Firoz Hussein bin Ahmad Jamaluddin from Kuala Lumpur.  One of the foreign lawyers informed the prime minister that the case was doomed to fail. That’s why the PM decided to discontinue.

Coming back to domestic disputes, we’ve had Tan Hock Chuan acting for the Malaysian government in the Teoh Beng Hock inquest. We had Tan Sri Shafee Abdullah acting for the public prosecutor against Datuk Seri Anwar Ibrahim in the Court of Appeal and the Federal Court.  Actual criminal prosecution — so that’s the closest analogy to Tuan Hj Sulaiman and Sri Ram.

In civil suits, AGC appointed Cecil Abraham and Zul Rafique for defendants such as Tan Sri Gani Patail, MACC, the Government of Malaysia.

Of the five lawyers I have appointed, three of them are acting “pro bono” — Sulaiman, Sri Ram and Sitpah Selvaratnam. The other two, Jeremy Joseph and Ong Chee Kwan, are entitled to be paid because they are advising us in a really specialist area, shipping and admiralty where AGC doesn’t have the expertise, and it’s a commercial deal.

Whatever proceeds we get, hopefully in the hundreds of millions, the two lawyers should be paid. But I’m closely monitoring it — it’s an hourly rate — and of course the MoF is also monitoring.

 

Q: Could it (the outcry) be because people were taken by surprise because you mentioned 1MDB as one of your top three priorities? And now, you’re being seen as passing over the lead prosecution, so perhaps people are taken aback by that.

A: Possibly. But you see, you can’t have it both ways. On the one hand, the criticism is that I don’t have criminal law experience and yet when I appoint two senior lawyers who have substantial criminal law experience, the criticism continues. So one has to accept: Anything one does is wrong! But the truth is that it is just not possible to do a long trial and combine the work of AG. I know that because when I was in practice I used to do long trials — heavy corporate commercial disputes. In fact, about a year before I left the Bar, I did a 40-day trial. It was a reported bonds case.  For four weeks before the trial, I did nothing but preparations for the trial. When the trial starts, you have to be full-time with the trial, because at night you have to prepare cross-examination questions. When the trial is over, you have to do research, and draft exhaustive written submissions. I was a hands-on barrister who took my court commitments seriously and professionally.  Knowing that first-hand, you cannot combine that with the demands of the AG, where the PM wants to see you, the cabinet wants to consult you,  [while] parliament is sitting, and so on.  It’s just not possible, you cannot combine all these demanding tasks with the work of counsel in court.

 

Q: But you have not competely stepped away from it...

A: No, I’m still absolutely in charge.  Like, for example ... the Shafee prosecution.  The MACC team interviewed the witnesses.  Sri Ram was involved in the final stages of investigations. I was involved in the preparation of the charges with the team. The final decision to prosecute is mine, and mine alone.  Malaysia must use all the resources available to pursue such matters.

 

Q: What about your officers within the chambers itself, isn’t that a vote of no confidence?

A: Not really. Because as I’ve said, there’s just so much work, and there are many cases in the horizon as we are planning and we can see where it is going. They are part of the team and they are working together. So it’s not a vote of no confidence.  In fact, the SRC (prosecution) team was happy because most of them were tutored by Sulaiman at university. They look to Sulaiman as their intellectual guru. One must look at it in terms of what does Malaysia need. The people of Malaysia want justice, they want speedy justice. The people of Malaysia deserve the best and the brightest to appear for them.

 

Q: What about political pressure? Has there been any on the office since you started here, any political pressure or messages sent to you saying we want this done, or that done?

A: Absolutely not. All concerned have been very good. They have all acted properly and correctly:  the PM, the cabinet, the ministers.  Of course many ministers are known to me as I’ve worked with them in the past.  They have left matters of law to me and the AGC. There is neither pressure nor interference.

 

Q: Are you surprised that there has been no political interference, especially coming from a PM who is accused of keeping the judiciary on a tight leash?

A: No, I’m not surprised. Tun Mahathir is a reformed PM.

 

Q: You truly believe he has reformed?

A: Absolutely. In my dealings, Tun has been right and proper. In fact, on the first day, he informed me, “Tell me if there’s something wrong, tell me I can’t do it”. So I said “Yes, Tun, I will”.

 

Q: Have you changed your opinion of Dr Mahathir? You were quite critical of him before.

A: (Laughs) There’s no doubt in my mind that the PM and the members of the cabinet whom I have dealt with genuinely believe in reform. So I can confirm that I am trying to be a reforming AG in a reforming government!

 


Tomorrow: Final Part of The Interview